Siew Lian Lim (Respondent/Claimant) v Entry Clearance Officer Manila

JurisdictionEngland & Wales
JudgeLord Justice Elias,Lord Justice McCOMBE,Lord Justice Ryder
Judgment Date28 July 2015
Neutral Citation[2015] EWCA Civ 1383
Docket NumberC2/2013/3184
CourtCourt of Appeal (Civil Division)
Date28 July 2015
Siew Lian Lim
Respondent/Claimant
and
Entry Clearance Officer Manila
Appellant/Defendant

[2015] EWCA Civ 1383

Before:

Lord Justice Elias

Lord Justice McCOMBE

Lord Justice Ryder

C2/2013/3184

IN THE COURT OF APPEAL (CIVIL DIVISION)

ON APPEAL FROM THE UPPER TRIBUNAL

(IMMIGRATION AND ASYLUM CHAMBER)

(LORD JUSTICE AIKENS)

Royal Courts of Justice

Strand

London, WC2A 2LL

Mr G Facenna (instructed by the Treasury Solicitors) appeared on behalf of the Appellant

Lord Justice Elias
1

This appeal raises the question whether the respondent, who has sufficient savings to meet her own needs but chooses instead to rely on financial support from a related EU citizen so that she will be able to pass on her assets to her children, can be regarded as a direct dependent relative in the ascending line within the meaning of regulation 7(1)(c) of the Immigration (European and Economic Area) Regulations 2006. The issue is one of EU law because regulation 7(1)(c) in turn gives effect to that part of the definition of "family member" found in Article 2.2(d) of the Directive 2004/38/EC, commonly known as the Citizens Directive. The significance of being a family member is that such a person, whether or not he or she is an EU citizen, is entitled to join EU citizens who have moved to another EU state in the exercise of their free movement rights: see Article 5.1 of the Directive, reflected in Article 12 of the EEA Regulations.

2

The respondent sought to exercise that right. The Upper Tribunal concluded, as had the First Tier Tribunal, that she was a dependent relative and was entitled to entry as a family member. The Secretary of State now appeals against that decision.

3

The respondent has not taken part in the appeal. It appears that she is no longer interested in exercising her right to join the family, if indeed she has such a right; nor did she wish to participate in the appeal. But the parties have been unable to reach an agreement as to how they should dispose of this appeal. Accordingly, the Secretary of State has pursued the appeal and the court has only had the advantage of hearing from one party. But Mr Facenna, counsel for the Secretary of State, has put all the relevant authorities before us and we have had the advantage of the typically careful reasoning of Upper Tribunal Judge Storey, who accepted the respondent's submissions when they were advanced below.

The facts

4

The material facts can be briefly summarised. The respondent is a Malaysian citizen aged 60. She is divorced and has two adult daughters, both of whom live in the UK, one being married to a Norwegian national and the other to a Finnish national. In July 2012 she sought entry clearance as a family member of an EU national, namely her Finnish son-in-law.

5

The respondent has her own home in Malaysia, valued at some £80,000, which she owns in her sole name free of any mortgage. She lives with her mother and ten-year-old grandchild, for whom she is the guardian. She formerly worked as a laboratory analyst and has money in an Employee's Provident Fund, a compulsory savings and retirement plan for private sector workers in Malaysia. In February 2012 this was worth in excess of £55,000. She can withdraw this sum in full at any time. She also has a small amount of savings of approximately £1,650 in a bank account.

6

Following her retirement, the respondent relied on her savings to cover her living expenses, which were around £150 to £200 per month. However, since early 2012 the daughter married to the Finnish son-in-law has sent her remittances of some £450 per quarter. She uses this to meet her expenses and has not had to draw on her capital. She could, however, meet her essential needs by drawing down on her retirement savings for at least ten, possibly 20, years, but she does not wish to draw upon that fund because she wants to pass it on as an inheritance to her children and grandchildren.

7

It is not, however, suggested by the Secretary of State that either she or her daughter has artificially attempted to create a situation of dependency so as to establish an entitlement to enter the UK, so there is no question of abuse of rights in this case.

The law

8

The relevant regulation in issue is Regulation 7(1)(c). It provides that:

" … for the purposes of these Regulations the following persons shall be treated as the family members of another person …

(c) dependent direct relatives in his ascending line or that of his spouse or his civil partner."

This essentially reflects the language in Article 2.2(d) of the Citizens Directive.

9

The test for dependency has been considered on a number of occasions by the Court of Justice of the European Union. There are three relevant judgments. The first is Centre Public d'Aide Sociale (Public Social Welfare Centre) Courcelles v Marie-Christine Lebon ( C/316/85) [1987] ECR 2811 ("Lebon"), which concerned a referral from a court in Belgium. The claimant and her father were French nationals living in Belgium. The father had worked in Belgium but had retired. The claimant had always lived in Belgium, originally with her parents, save for a short period working in France. She claimed a social security benefit from the Belgian authorities. Her entitlement to it depended upon whether she was a "dependent family member". The case did not directly concern the Citizens Directive, which was not in existence at that time. It concerned a different European provision, namely Article 7(2) of Regulation 1612/68. However, Regulation 10 was drafted in similar terms to Article 2(2) of the Citizens Directive and gave a right of entry to dependent ascendants of a migration worker.

10

A number of issues were raised in that reference. Question 3 posed the following question:

"… does the status 'dependent member of a worker's family' result from a factual situation in each case, to be assessed in specific or from objective circumstances independent of the will of the person concerned which make it necessary for him to have recourse to the support of the worker?".

The court pointed out that the fact that the claimant was claiming social benefits did not defeat her claim to be a dependent family member if she had originally had that status; the status had not been lost because of such a claim.

11

The debate before the court was whether it was enough that material support was in fact provided by a relative or whether it was necessary to consider, objectively, whether the putative dependent was in a position to support himself, such as by gaining employment. The Advocate General considered that the latter was the correct approach. She said this:

"In my opinion the only answer which can be given to the third question is that dependency … is not purely a matter of actual payments to meet a substantial part of daily needs; it is more important to consider whether, because of need, such necessity exists and cannot be met by taking suitable employment in spite of serious efforts to find it."

12

The court disagreed with this analysis. They considered that the question was whether as a matter of fact resources were provided to meet the needs of the putative defendant and gave their reasons as follows:

"22. Article 10(1) and (2) of Regulation 1612/68 must be interpreted as meaning that the status of dependent member of a worker's family is the result of a factual situation. The person having that status is a member of the family who is supported by the worker and there is no need to determine the reasons for recourse to the worker's support or to raise the question whether the person concerned is able to support himself by taking up paid employment.

23. That interpretation is dictated by the principle according to which the provisions establishing the free movement of workers, which constitute one of the foundations of the Community, must be construed broadly …

24. The answer to the third question must therefore be that the status of dependent member of a worker's family, to which Article 10(1) and (2) of Regulation 1612/68 refers, is the result of a factual situation, namely the provision of support by the worker, without there being any need to determine the reasons for recourse to the worker's support."

13

The context of the Lebon decision was that the descendant did need the support of her father to meet her needs. However, it is right to say that, read in isolation, paragraph 24 suggests that such dependency is not necessary and that the only question is whether in fact the EU worker provides financial support.

14

The issue was considered again in the second material case, Jia v Migrationsverket (KC/1/05), [2007] QB 545. This was a case heard by the Grand Chamber. A Chinese couple wished to enter Sweden to join their son, who was married to a German woman working in Sweden. One of the issues in the case was what it means to say that someone is dependent on his or her relatives. This again was not concerned directly with the Citizens Directive, but rather Council Directive 73/148/EEC, which was concerned with the abolition of restrictions on free movement. However, this also used the concept of dependency. Article 1(d) provided that a state should abolish restrictions on "the relatives in ascending and descending lines of such nationals and of the spouse of such nationals, which relatives are dependent on them, irrespective of their nationality". The relevant questions posed in that case were as follows:

"(2)(a) Is Article 1(1)(d) of Directive 73/148/EEC to be interpreted as meaning that 'dependence' means that a relative of a citizen of the Union is economically dependent on the citizen of the Union to attain the lowest...

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